Posted by: Patricia Salkin | January 12, 2016

District Court of Illinois Holds Village Failed to Establish that Ordinance Imposed Constitutionally Proper Content-Neutral Time, Place, and Manner Restrictions

Robert Peterson, the owner of Leibundguth Storage & Van Service, Inc., displayed several large signs identifying and advertising his business on the outside of its Downers Grove location for decades. Leibundguth says that these signs are an important source of business, but they ran afoul of both the type and quantity restrictions of the Village’s amended sign ordinance. Peterson and Leibundguth sought a declaratory judgment that the ordinance violated the First and Fourteenth Amendments of the United States Constitution and Article I, Section 4 of the Illinois Constitution; a permanent injunction against enforcing the ordinance; one dollar in nominal damages; and costs and attorney’s fees. The Village brought a counterclaim asking the Court to declare that the sign ordinance is valid and to order Plaintiffs to comply with their terms and pay any applicable fines. The Village also moved to dismiss the amended complaint, arguing that Plaintiffs were barred by certain Illinois statutes of limitations and lack standing to assert injury, and that the sign limitations were content-neutral, “time, place, and manner” restrictions allowed by the Constitution.

The Village first argued that any effort by Plaintiffs to seek “judicial review” of the Village Council’s denial of their request to amend the sign ordinance and the Zoning Board’s rejection of their variances was time-barred, citing part of the Illinois Municipal Code, 65 ILCS 5/11–13–25, which requires commencement of judicial review of municipality’s zoning decision within 90 days, and 735 ILCS 5/3–103, which requires review of final administrative decisions, such as the Zoning Board’s, within 35 days. Here, Plaintiffs targeted the alleged deprivation of federal constitutional rights under 42 U.S.C. § 1983; thus, the statute of limitations was two years. The court did agree, however, that because it was self-evident from the amended complaint that the only harms alleged were to Leibundguth the corporation, the Village’s motion to dismiss Peterson as a plaintiff should be granted.

The Village next asserted that Leibundguth lacked standing to generally challenge the entire sign ordinance, even if it asserted its own particular injury under certain specific provisions. The court rejected this contention, finding Leibundguth stated the constitutional minimum to satisfy the standing requirement, including an injury-in-fact (restrictions on its revenue-generating advertisements), a causal connection between that injury and the complained-of conduct (the ordinance imposes the content-based restrictions), and a likelihood that a favorable decision would redress that injury. As to the issue of whether ordinance imposed constitutionally-proper content-neutral time, place, and manner restrictions, the court found there was no dispute that Leibundguth’s endangered signs were not misleading and did not concern anything illegal; they merely provided the company name and phone number, and a partner-business’s name. Thus, the questions that remained unanswered were whether the Village’s sign ordinance pursued a substantial governmental interest and whether the ordinance was an appropriate fit to address that interest. At this preliminary stage of the litigation, the court determined that the Village failed to establish that ordinance imposed constitutionally-proper content-neutral time, place, and manner restrictions. The Village’s motion was therefore denied on all counts except for removing Peterson as an individual plaintiff.

Peterson v Village of Dowers Grove, 2015 WL 1929737 (ND IL 4/27/2015)


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